[EL] Verifying Citizenship For Voter Registration

[Pildes, Rick]

I would appreciate help with this question, for purposes of upcoming classes:

When registering to vote, people must check a box indicating their citizenship status and sign the form, with criminal penalties for perjury if they have knowingly falsified their status.

For a State that is concerned about whether non-citizens are registering, despite this oath, what (if anything) can the State lawfully do to verify the citizenship status of potential voters?

Most students are surprised to learn there is no national data base of citizens against which a State could check status.  Dan Tokaji has informed me that the Real ID Act does not provide an answer, even if it were fully implemented in the states (which it's not).  People are required to provide evidence of lawful status to get a qualifying Real ID, but permanent residents and asylum applicants are allowed to get it, and the ID itself isn't required to show citizenship or immigration status.  We know there are certain things the States cannot do, such as demand that the federal voter-registration form require documentary proof of citizenship at the time of registration.

The same question arises for academic researchers who might be interested in trying to determine whether any non-citizens actually register to vote (whether in mistaken belief or otherwise) and if so, how many.  How would a researcher go about trying to get data on this question?

The controversy over the Richman et. al. studies and the critiques of those studies, which have been highlighted on this blog, don't answer this question.  See https://electionlawblog.org/?p=90668 and https://electionlawblog.org/?p=89545 and
https://electionlawblog.org/?p=87732.  These issues concern what to make of the self-reporting of individuals on their citizenship and registration status in the CCES surveys.  If we accept that the Richman studies are meaningless, for reasons these critiques identify, that still does not give us an affirmative answer.  Moreover, in the Ansolabehere/Luks/Schaffner re-survey of the 19,000 respondents to the CCES survey of 2010, 99.25% report being citizens - so this pool is obviously not representative of the citizen/non-citizen population in general, let alone in border States like TX, AZ, and NV (even if we agree to rely on self-reporting).

I'm inclined to tell my students there is nothing States currently can do to verify the citizenship status of those who register to vote as citizens.  But if I am missing something, I'd appreciate hearing before reporting that.  Even if that's right, that does not mean there is a problem, of course.  My own instinct is to think there isn't a meaningful problem.  I suspect the most reliable place to find credible information would come from election-contest litigation, in which each ballot is examined one by one.  But I'd appreciate any further insights.



Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square South, NY, NY 10012
212 998-6377

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170213/9b3dac89/attachment.html>